YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017]
The Risk of Statelessness
VOL. XIX
73
would use to analyze the alleged violations of the right to nationality.174
The Inter-American Court spoke of nationality as a “natural condition of
the human being,” which serves as a basis for both political and civil
status.175 The Court acknowledged that, while the power to grant
nationality is within the sovereign purview of a state, states must exercise
that power in accordance with well-established rules of international law.176
The Court then recalled its framework for analysis in The Girls Yean and
Bosico, where it established that states must abide by “their obligation to
prevent, to avoid and to reduce statelessness,” and “their obligation to
provide each individual with the equal and effective protection of the law
without discrimination.”177
With regard to the obligation to avoid statelessness, the Court recalled
that states may not adopt practices or laws that tend to create statelessness,
and that this obligation should be assessed at the moment of birth.178 The
Inter-American Court cited the ICCPR and highlighted the Human Rights
Committee’s reiteration of the well-established norm that states are
required to take every “appropriate measure” to ensure that children
acquire nationality at birth.179 It further referenced the CRC in emphasizing
this obligation, using it as guidance on the scope and meaning of the right
to nationality guaranteed under the American Convention.180 The Court
recalled its own application of these norms in The Girls Yean and Bosico, and
reiterated that
the condition of being born in the territory of a State is the only one that
needs to be proved in order to acquire nationality, in the case of those
who would not have the right to another nationality if they did not
acquire that of the State where they were born.181
The Court then took a novel jurisprudential step in elaborating the
circumstances that trigger this legal right to nationality in the place of birth.
The Court established that
if the State cannot be certain that a child born in its territory can obtain
the nationality of another State, for example the nationality of a parent
by ius sanguinis, that State has the obligation to grant it nationality (ex
174. Id. ¶¶ 253-64.
175. Id. ¶ 255 (citing Proposed Amendments of the Naturalization Provisions of the
Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4, ¶ 32
(Jan. 19, 1984)).
176. Id. ¶ 256.
177. Id. (citing Case of the Girls Yean and Bosico v. Dominican Republic, Preliminary
Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 130, ¶ 140
(Sept. 8, 2005)).
178. Id. ¶ 257-58.
179. Id. ¶ 258.
180. Id. ¶ 258-61.
181. Id. ¶ 260 (quoting Case of the Girls Yean and Bosico v. Dominican Republic,
Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 130, ¶ 156 (Sept. 8, 2005)).
Electronic copy available at: https://ssrn.com/abstract=3111529
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